DIAS v. KODITHUWAKKU

045-SLLR-SLLR-1999-V-3-DIAS-v.-KODITHUWAKKU.pdf


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Sri Lanka Law Reports
[1999] 3 Sri LR.
DIAS
v.KODITHUWAKKU
COURT OF APPEALISMAIL J- (P/CA),TILAKAWARDENA, J.
A.LA. NO. 225/98.
C. MT. LAVINIA NO. 2043/98/D.FEBRUARY 2, 1999.
Judicature Act, No. 2 of 1978 – S. 54 – 54 (1) b (1) c – Injunctive reliefs -Applicability to matrimonial actions – Entitlement of wife to matrimonial home untildissolution of marriage.
The District Court granted an interim injunction preventing the defendant-petitioner(husband) from alienating the matrimonial house'. On leave being sought –
Held:
The granting of injunctions in matrimonial actions is a civil law remedy,which legally has no basis to be excluded in matrimonial actions.
The wife is entitled to be provided with a matrimonial house until thedissolution of the marriage by a Court of Law.
Per Thilakawardena, J.
"There is an obligation on the husband to maintain the wife and theobligation includes the provision of a home and if he deserts her, she is entitledto take steps to protect her position."
APPLICATION for leave to Appeal from the order of the District Court of Mt. Lavinia.Cases referred to:
Bendall v. McWhirter – 1952 2 QB 466.
Boulton v. Prentice – 1 Selw N.P. 13th ed. 233.
Manby v. Scott – 2 Smiths Leadings Law 13th ed. 456, 469.
CADias v. Kodithuwakku (Shirani Thilakawardena, J.)355
Lee v. Lee – 1952 2 QB 480.
Alwis v. Kulatunga – 73 NLR 337.
Canekaratne v. Canekaratne – 71 NLR 522.
D. R. P. Goonetilleke with S. A. D. S. Suraweera for 1st defendant-appellant-petitioner.
Manohara R. de Silva for plaintiff-respondent.
Cur. adv. vult.
February 19, 1999.
SHIRANI THILAKAWARDENA, J.
An action for divorce was instituted by the plaintiff-respondent againstthe 1st defendant-appellant-petitioner on the grounds that he haddeserted her and was living in adultery with the co-defendant-respondent.
Pending the hearing of the action for divorce, an application wasmade by the 1st defendant-appellant-petitioner to sell the propertydescribed in the schedules to the plaint on the basis that he wasunable to be in employment and to repay the loans and/or redeemthe mortgages obtained in favour of the two properties. It had beenagreed by both parties that the matter relating to the interim injunctionwould be resolved on the written submissions filed by both parties.The order was delivered on 9.9.98.
In this order, the District Judge has granted an interim injunctionpreventing the 1st defendant-petitioner from alienating the propertydescribed in the 1st and 2nd schedule to the plaint. The 1st defendant-petitioner has preferred this application against this order.
Counsel for the 1st defendant-appellant-petitioner submitted thatthe District Judge had erred in granting the interim injunction, as heshould have permitted the alienation of the property for the purpose
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of the settlement of the commitments to the bank, and also contendedthat in any event the District Court had no power to grant interiminjunctions in matrimonial actions.
In his order, the District Judge has considered that the plaintiff-respondent has sought damages in a sum of Rs. 500,000, andpermanent alimony in a sum of Rs. 3,000,000, and that the alienationof this property before the matters between the parties are resolved,could render unenforceable any order made in that regard.
He has also considered the fact that the alienation of the property,one on which was the matrimonial home, would necessarily result inthe plaintiff wife having to leave the matrimonial home and be leftwithout accommodation.
The right to dispose of the property relating to the matrimonial homeby an estranged spouse has been considered in several cases.
It was held, in the case of Bendall v. McWhirte/<’> that “a desertedwife acquired on desertion a right to reside in what is then thematrimonial home as against the husband which the husband cannotterminate at pleasure even though he may have the whole legal andwhole equitable title in himself'.
Referring to the judgments of Boulton v. Prentice^, and Manbyv. ScotP] Denning, LJ. in the case of Bendall v. McWhirter, statedthat "one of the most obvious necessaries of a wife is a roof overher head; and if we apply the old rule to modern conditions it seemsonly reasonable to hold that (even) when the husband is a tenantof the matrimonial home, the wife should have the irrevocable authorityto continue the tenancy on his credit; and that when he is the ownerof it she should have the irrevocable authority to stay there. Thisauthority, like the old one, is based on an irrebutable presumptionof law".
CA
Dias v. Kodithuwakku (Shirani Thilakawardena, J.)
357
The underlying principle was that there is an obligation on thehusband to maintain his wife and the obligation includes the provisionof a home and if he deserts her, she is entitled to take steps to protecther position. Lee v. Leew. In this case Somerville, LJ. held that anorder restraining the husband from selling the house over his wife'shead was a fit and proper order, in order to forestall the prejudiceto the wife, and the judge had the jurisdiction to make the order.
These decisions were followed in the case of Alwis v. Kulatungets>.In his judgment Alles, J. held that one of the propositions emergingfrom the English law, was that the wife was entitled to be providedwith a matrimonial home until the dissolution of the marriage by aCourt of competent jurisdiction.
In the same case in a separate judgment referring to the RomanDutch law principles Justice H. N. G. Fernando also held that “theright of the wife to be supported by her husband and thereby to provideher with accommodation, food, clothing, medical attention and whatshe reasonably requires".
This was followed in the case of Canekeratne v. Canekeratnd®,where T. S. Fernando, J. held that "a wife who has been desertedby her husband is not liable to be ejected by her husband from thematrimonial home. (Unless alternative accommodation or substantialmaintenance to go and live elsewhere is offered to her).
It is evident that these principles have gained recognition In SriLanka, and that the defendant-respondent and her 3 children had aright not to be ejected from the matrimonial home.
The next issue is whether an injunction could be issued in matrimonialmatters relating to family law.
Section 54 of the Judicature Act, No. 2 of 1978, interprets thecircumstances under which the District Court, the High Court and thefamily Court could grant injunctions restraining any defendant fromremoving or disposing of property, where the defendant during the
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pendency of an action is about to remove or dispose of his property,in this context the provisions of both 54 (1 )b and 54 (1)c are relevant.Consequently in circumstances of threatened harm by an act whichwould render the judgment ineffectual such a remedy could clearlybe resorted to.
According to English law the Injunctive Procedure has been rec-ognised and the English Courts issue molestation injunctions andouster injunctions regularly in order to control the domestic violenceand to further the best interest of the child. (Principles of Family Lawby Stephen M. Cretney 4th ed – Sweet and Maxwell page 238-243).
The granting of injunctions in matrimonial actions is a civil lawremedy, which legally has no basis to be excluded in matrimonialactions.
In these circumstances we see no reason to interfere with the orderof the District Court Judge and the application for leave to appealis dismissed with costs.
ISMAIL, J. (P/CA) – I agree.
Application refused.